NYSBA SUMMER 2013 | VOL. 38 | NO. 2 Labor and Employment Law Journal A publication of the Labor and Employment Law Section of the New York State Bar Association DDisloyalisloyal EEmployeesmployees UUndernder tthehe CComputeromputer FFraudraud aandnd AAbusebuse AActct AAlsolso IInsidenside • TThehe IImpactmpact ooff ee-Discovery-Discovery oonn IIndividualndividual EEmploymentmployment CCasesases • GGreaterreater GGovernmentovernment LLiabilityiability fforor NNegligentegligent HHiringiring • IInternalnternal IInvestigationsnvestigations iinn OOverseasverseas WWorkplacesorkplaces Your key to professional success… A wealth of practical resources at www.nysba.org • Downloadable Forms organized into common practice areas The Labor and Employment Law • Free legal research from Journal is also available online Loislaw.com • Comprehensive practice management tools • Forums/listserves for Sections and Committees • Ethics Opinions from 1964 – present • NYSBA Reports – the substantive work of the Association • Legislative information with timely news feeds • Online career services for job seekers and employers • Learn more about the Go to www.nysba.org/LaborJournal Lawyers Assistance Program to access: at www.nysba.org/lap • Past Issues (2000-present) of the Labor and Employment Law Journal* • Labor and Employment Law Journal Searchable The practical tools you Index (2000-present) need. The resources you • Searchable articles from the Labor and demand. Available right Employment Law Journal that include links to now. cites and statutes. This service is provided by Loislaw and is an exclusive Section member benefi t* Our members deserve *You must be a Labor and Employment Law Section member nothing less. and logged in to access. Need password assistance? Visit our Web site at www.nysba.org/pwhelp. For questions or log-in help, call (518) 463-3200. For more information on these and many other resources go to www.nysba.org Table of Contents Message from the Outgoing Section Chair ................................................................................................4 (John Gaal) Message from the Incoming Section Chair ................................................................................................5 (Jonathan Ben-Asher) Disloyal Employees Under the Computer Fraud and Abuse Act: Recent Splits of Authority Within the Second Circuit .........................................................................7 (Stephen W. Aronson and Ian T. Clarke-Fisher) Internal Investigations in Overseas Workplaces ....................................................................................10 (Donald C. Dowling, Jr.) Developments in NLRB Remedies Under the Obama Board ...............................................................21 (Julie Rivchin Ulmet) Limits on Sovereign Immunity in the Post-NASA v. Nelson Era: Greater Government Liability for Negligent Hiring .........................................................................28 (Zachary Rothken and Jonathan Sturm) A Model for Success: Why New York Should Change the Classification of Child Models Under New York Labor Laws ...............................................................................................................47 (Craig Tepper) The End of the World as We Know It? The Impact of e-Discovery on Individual Employment Cases ........................................................62 (William D. Frumkin and Elizabeth E. Hunter) “Other Mutual Aid or Protection”: Collective Legal Claims as Concerted Activity in D. R. Horton, Inc. and Beyond .........................66 (Amanda Jaret) Early Discovery Protocols for Employment Arbitration Cases ............................................................71 (Jeffrey T. Zaino) NYSBA Labor and Employment Law Journal | Summer 2013 | Vol. 38 | No. 2 3 Message from the Outgoing Chair The older I get, the more very successful CLE programs both in conjunction with often I am reminded how “time our Fall Meeting and the Bar’s Annual Meeting, as well fl ies.” It truly seems like just as several stand-alone programs. We continue to make last week (it was really June of strides with respect to Committee activities. We will soon 2011) that I settled into my role have completed a Handbook for new Committee Chairs. as Chair-elect of the Section Our mentoring program has had a great start and we and just yesterday (it was really enter our second year with a new group of mentors and June of 2012) that I took over as mentees. And our Diversity Initiatives are really “paying Chair. To say that even now, as off,” not only in terms of NYSBA recognition, but far another year has gone by and more importantly in the addition of new members from my term has come to an end, the very diverse backgrounds, especially on our Executive time has gone by in a fl ash is an Committee. understatement. I suspect like most Chairs at the end of their terms, Of course, a big reason for this has been the people I reach this point with mixed emotions. In many ways, I I have been fortunate enough to work with as Chair. am sorry to see this time come to an end. But at the same Whether Past Chairs Al Feliu, Mairead Connor, Don time I am excited about the promise that accompanies the Sapir and many others; our new Chair Jon Ben-Asher; next wave of leadership as it takes over. the other offi cers this past year (Ruth Raisfeld and In closing, my thanks to all who helped me this past Willis Goldsmith); our Executive Committee members; year (those named above and so many others), and “best or, perhaps most importantly, our NYSBA Liaison Beth wishes” to Jon, Willis, Ron Dunn, and Sheryl Galler as Gould, to a person they were endlessly supportive, they prepare to take the Section to even greater heights. immensely helpful, and a pleasure to work with. From this vantage point, I have been constantly reminded of the collegiality that marks our Section. John Gaal On a more substantive note, I fi rmly believe the Section had yet another outstanding year. We hosted Request for Articles If you have written an article you would like considered for publication, or have an idea for one, please contact the Labor and Employment Law Journal Editor: Allan S. Bloom Paul Hastings LLP 75 East 55th Street New York, NY 10022 [email protected] Articles should be submitted in electronic document format (pdfs are NOT acceptable), along with biographical information. www.nysba.org/LaborJournal 4 NYSBA Labor and Employment Law Journal | Summer 2013 | Vol. 38 | No. 2 Message from the Incoming Section Chair Labor and employment Commissioner Chai Feldblum. Commissioner Feldblum lawyers are lucky. Every day we discussed issues arising under the ADA with her trade- get to learn about the workplace, mark insight, directness and humor. Many thanks to immerse ourselves in the criti- Orrick Herrington & Sutcliffe for hosting, and for arrang- cal legal, economic and human ing the excellent catering. Jill and Wendi have also been issues our clients face, advocate working to recruit our Diversity Fellows. Based on their for them in taxing confl icts, and efforts, our Section received a NYSBA Diversity Chal- work toward solving their prob- lenge Award for 2012-13. lems. Our work has drama and Rachel Santoro and Genevieve Peeples have done meaning, and we always have great work chairing our New Lawyers Committee. They good stories to bring home. continue to oversee our Mentoring Program, which We are particularly lucky matches mentors and mentees based on practice area, in our Section, because this is a place where we can geography, and other commonalities. Genevieve and Ra- learn from the lawyers who in another context might be chel would like to expand the program, and so welcome our opponents. We have a tradition of ensuring that all Section members who would like to serve as mentors. constituencies are valued in our activities, and we place The Committee organized a successful reception at Paul a particular value on collegiality. This allows us to at Hastings in June with Magistrate Judge James C. Francis least hear the other side’s perspective, learn from it, and (S.D.N.Y.). Judge Francis spoke with candor and wisdom become better lawyers. about employment litigation and professional civility. The Committee is also surveying mentors and mentees to Starting my year as Section Chair, I am lucky to have get their feedback about their experiences in the Mentor- learned over the past two years from John Gaal and Al ing Program, and how it could be improved. Feliu, who have done a huge amount to re-energize our Section and move it forward. Section Secretary Ruth Thanks to the Communications Committee, chaired Raisfeld was always a source of creativity and ideas. This by Mark Risk and Jim McCauley, our Section website is coming year, I am glad to be able to work with Chair- thriving. Mark and Jim welcome your contributions and elect Ron Dunn, our new Secretary Willis Goldsmith, and news of committee activities, so please contact them with Secretary-elect Sheryl Galler. And our NYSBA Liaison, your ideas and copy. The Committee has posted CLE Beth Gould, is extraordinary in every way, masterfully papers from recent Section conferences on the website, handling the always complicated logistics for our meet- arranged by subject, and is seeking additional bloggers. ings, communications and fi nances. She is always orga- Meanwhile, NYSBA is revamping its overall website, nized and calm, and never loses her sense of humor. with a new look, which should be online this fall. Most importantly, we are